The government says it wants to review the files for compliance with arms export control laws known as the International Traffic in Arms Regulations, or ITAR. By uploading the weapons files to the Internet and allowing them to be downloaded abroad, the letter implies Wilson’s high-tech gun group may have violated those export controls.

“Until the Department provides Defense Distributed with final [commodity jurisdiction] determinations, Defense Distributed should treat the above technical data as ITAR-controlled,” reads the letter, referring to a list of ten CAD files hosted on Defcad that include the 3D-printable gun, silencers, sights and other pieces. “This means that all data should be removed from public access immediately. Defense Distributed should review the remainder of the data made public on its website to determine whether any other data may be similarly controlled and proceed according to ITAR requirements.”

These concepts are all completely imaginary, and yet we treat them as if they are real, and have serious discussions about every last detail of how they function — like a debate about the best mutant superpower, but with multimillion dollar lawsuits. Copyright necessitates that we all pretend we don't know any better. It makes us act stupid.

Take "used MP3s" for example. The idea is instantly nonsensical, and proposing it seems on par with asking how all those people fit inside the television. A "used MP3" is indistinguishable from a "new" one, and on the internet there's no such thing as an individual, discrete copy of an MP3 that gets "moved" from one person to another anyway. Speaking even more broadly, a "file" is not a "thing" at all — it's a concept that we use to help organize and visualize the even more abstract concept of "information" in many different places and states, whether magnetically inscribed on a hard disk platter or being transmitted via radio waves (not to mention the internal operation of a computer, where pieces of the information are shunted around between multiple different components and caches).

A "file" is an analogy, and like all analogies, it's incomplete. It breaks down when taken too far, and then it must be discarded, because analogies only exist for our convenience. "Moving" a file is also an analogy — in reality, we are copying it and then deleting the original. Even deleting a file is usually an analogy — the data is still recoverable, the computer has just been instructed to pretend it's not there anymore.

The purpose of these analogies is not to impose limitations on reality. We don't give up the ability to copy a file because we simulated the ability to move it. We don't have to pretend information degrades like physical objects just because we chose to conceptualize it that way. If we want to describe something as "the size of 10 football fields", we don't demand there be gridiron lines painted on it. There's a reason that stubbornly sticking with analogies is referred to as torture, and every discussion about "used files" or the difference between moving and copying is another turn of the screw.

Because of copyright, we are constantly asked to pretend that these analogies are binding. When we "lend" a Kindle ebook, we must pretend that we gave a thing away and don't have it for a while, when in fact our device is just refusing to let us access it. When a library wants to lend out ebooks, they must pretend they have a "limited number of copies available." When we buy software with an activation code, we must pretend that we "only bought one" and thus can only have it in one place at a time. When we rent a digital movie, we must pretend that we "have to give it back". We have to pretend we're stupid and that our devices have limitations which don't actually exist.

But here's the real kicker: the moment there might be any benefit to the consumer, the content companies toss the analogy out the window, and suddenly want to talk about reality. Thus you get things like ReDigi, the would-be used MP3 market that recently lost in court. ReDigi attempted to make MP3s simulate discrete items by enforcing the analogy of "moving a file" using a monitoring system, such that when you sold an MP3 to someone, it would make sure you deleted your own copy. Though we always suspected it was doomed, it was at least rather fascinating from a legal and policy perspective, potentially creating a clash between copyright and first sale rights. After all, if we are expected to treat digital files like physical property, we should at least be getting the rights that come with that.

But this time the record labels wanted to focus on the fact that there's no such thing as moving a file, and pointed out that ReDigi involved making copies whether or not it also involved deleting other copies — and the judge agreed. This is actually correct, technically and realistically — just don't tell them that next time, when it doesn't benefit them and they're back to calling infringement theft. As if to underline their masterful doublethink when it comes to the nature of property, the labels are all about having their cake and eating it too.

ReDigi is hardly the only example. We've written before about the insane situation with TV and movie streaming, where companies do things like set up a warehouse full of separate DVD players that stream from individual discs, or install a separate TV antenna on the same rooftop for every customer who wants an online stream. They are forced to willfully ignore technological capabilities, engineering principles and simple common sense just to conform to all these broken analogies — and they still face massive opposition from content owners and broadcasters every step of the way.

The real issue, when you get down to it, is that copyright itself is imaginary. A "song" or a "novel" is just as analogical as a "file". Originally, copyright law was very concerned with separating the expression of an idea from the idea itself, and in theory that's still the case, but in practice the line has proven almost impossible to draw. So first we conceptualize an abstract thing like "content" as discrete pieces, then we conceptualize all the abstract rights associated with those pieces, and then we conceptualize the discrete units of distribution and ownership within those rights.

These are all imaginary concepts, built on top of other imaginary concepts, built on top of still more imaginary concepts. It's turtles all the way down.

This does not necessarily mean that there's no place for copyright in the world. But in order for it to function, we have to remember that it's an analogy — it's something chosen and used to achieve a purpose, not something that binds and shapes reality, or that we must conform to at the expense of our better judgement. Originally, copyright was just that: a choice by society to employ the analogies of ownership and property in limited, specially-tailored ways in order to achieve a desired result — a flourishing intellectual and artistic economy. Today, copyright is worlds away from what it was then, and it does more to hinder that goal than help it... but many people seem to have forgotten that it's a just a tool, and we can always put it down.

In all the discussion about the various reasons people give for violating copyright, I think there's one that goes unmentioned: a lot of people just refuse to pretend to be stupid.

Trevor Clarke, assistant director general for the Culture and Creative Industries Sector of the World Intellectual Property Organization (WIPO), said during a workshop on “Rethinking Copyright” today that the multi-stakeholder environment is “the best and and most appropriate” when it comes to the debate on copyright in the digital age. WIPO is preparing for such multi-stakeholder discussions, Clarke told Intellectual Property Watch.

Clarke said the WIPO director general and secretariat has added their voices to the call for a reexamination of the copyright system and have not shied away from the fact that some aspects of the law need to be revisited. Not only law, but also culture and infrastructure of the system, have to be considered, he underlined. Member state positions vary considerably on the issues, and it would make sense to include the private sector and also civil society into the talks, he said, adding, “We need that dialogue.”

VerBruggen responds by insisting that piracy is wrong. He’s right, but this doesn’t get him as far as he thinks it does. This isn’t just an abstract exercise in moral philosophy. The government has limited resources, and a long list of problems to deal with. The question isn’t “should the government try to stop piracy,” it’s “how many resources should the government devote to combatting piracy as opposed to other problems.”

And VerBruggen never really grapples with this question. He seems to believe that the right amount of enforcement is more than we already have, but he doesn’t offer any principled basis for deciding how much more, or how to tell when we’ve passed the point of diminishing returns. Without such a principle, we’re just going to have this debate over and over again, as each new anti-piracy measure fails and Hollywood comes back for still more restrictions.

When brick-and-mortar bookstores complain about the threat they face from Amazon.com, they are complaining that customers will leave them for a superior alternative; when Hollywood complains about piracy, they are complaining that customers have left them for an illegal alternative. They have stopped paying for Hollywood products yet are still consuming them. These are not even remotely similar situations — morally, legally, or economically.

With this distinction in mind, one might find it rather odd for Salam and Ruffini to insist that the solution to piracy is “innovation” rather than law enforcement. By “innovation,” they mean primarily that Hollywood should make it easier and cheaper for customers to buy their content digitally, citing studies indicating that when digital content becomes readily available through legal channels, piracy goes down. But even assuming Hollywood can discourage piracy by cutting prices and offering its content in different ways, since when do we tell crime victims to appease their tormenters?

Moreover, in no other industry do we allow consumers to force prices down by taking products for free whenever they, personally, think the legal versions are too expensive or inconvenient. Any customer may refuse to buy a product that’s undesirable, or even organize a boycott — but then that customer needs to go without the product.

Salam and Ruffini provide no justification for singling out industries that sell intellectual property — and little evidence that these industries’ disproportionately young, bratty, and entitled consumers are better equipped than the free market to decide what a “fair” price is for an album or movie that cost thousands or even millions of dollars to create and market.

For starters, while making content widely available for low prices does seem to reduce piracy, it hardly eliminates it.

Spotify’s payment formulas are not public, but various leaks indicate that on average, artists and labels are paid around one-third of one cent every time a user listens to (“streams”) a song. By way of comparison, artists and labels make 70 cents when a song is purchased for 99 cents from iTunes. Thus, a user has to listen to a song on Spotify more than 200 times before earning ad revenue for the artist and label that’s equivalent to a sale.

But piracy does “put pressure on profit margins,” as Salam delicately put it on National Review Online recently. By one estimate, per capita, inflation-adjusted spending on recorded music has fallen 64 percent since its peak in the late 1990s, and is lower today than at any time since at least 1973, despite the fact that every other person you pass on the street is wearing earbuds.

The numbers change little when one uses total rather than per capita revenue, and home-video sales are falling as well.

That in itself should be troubling to anyone who thinks the profit motive matters — with less profit, presumably, will come less creative output.

As commentator Eduardo Porter noted in the New York Times, while the total number of music-album releases rose between 2005 and 2010, releases of albums that sold at least 1,000 copies — a rather low standard by which to judge whether an artist is making a significant contribution to the world of recorded music — declined about 40 percent. Of course, like Salam and Ruffini’s, Porter’s data are highly debatable — he relies on the Nielsen sales database, which excludes some independent releases and does not count sales of single songs.

The finer points of entertainment economics aside, if widespread and increasingly popular illegal behavior is costing American companies business, and possibly reducing artists’ creative output, it is first and foremost a law-enforcement problem, not an “innovation” problem. It is entirely reasonable for Hollywood to petition the government for better anti-piracy efforts, even if the industry has lobbied for bad legislation in the past.

“Throughout the legislative process, we have met with groups and companies with different views on how to address rogue websites. Earlier this year, the Committee held a hearing on the problem of rogue websites at which the public interest group perspective was represented by the Center for Democracy and Technology. We also heard from Floyd Abrams—a well-known constitutional scholar—who affirmed that the Stop Online Piracy Act is constitutional under the first amendment and provides sufficient due process. And tomorrow, we will hear from a representative of Google, which opposes legislative efforts to rein in rogue websites. Assertions that the legislative process has been stacked against the opposition are inconsistent with the facts.

“This bill has strong bipartisan support in the House Judiciary Committee. The theft of America’s IP costs the U.S. economy more than $100 billion annually and results in the loss of thousands of American jobs. We must protect America’s intellectual property from rogue websites. The Stop Online Piracy Act helps stop the flow of revenue to rogue websites and ensures that the profits from American innovations go to American innovators.”

The U.S. credit ratings downgrade, tumbling stocks and international instability have made not just financial analysts nervous this week. Consumers are also starting to wonder whether we’re about to enter another recession. Whenever that happens, people start to tighten their belts and cut unnecessary expenses -- like paying for movies and TV shows.... With memories of the housing slump still fresh, many people could simply return to BitTorrent and download movies for free instead of going to the movies or paying for VOD.

T-shirts and jeans aren’t made out of zeroes and ones, at least not yet. But just because movies and TV shows and songs can now be packaged and distributed as data, not just as film reels or vinyl records or DVDs, and can be acquired or distributed with a few clicks of a mouse, doesn’t mean that the labor and time and money that went into making them is any less meaningful.

We doubt many people will subscribe to the kind of intellectual dishonesty that suggests that it’s fine – or really, that it’s inevitable – to steal as a way of saving. But it’s troubling that by suggesting that stolen content available on rogue sites and elsewhere is just another substitute good, Roettgers is tacitly arguing that content theft is legitimate and socially acceptable.

ABC's lawyers have argued that TV history is littered with a long line of obstacle-course competitions, dating back to the BBC's It's A Knockout, which ran during the '60s, stating that TBS "remarkably claims copyright protection in obstacles and obstacle concepts ubiquitous in the public domain, such as 'rope swings,' 'mechanical bulls' and 'pole vaults.'" If there's nothing "unique" (and that's become a very slippery word), then TBS has no legal claim to these elements.

However, ABC executive Howard Davine may have laid some inadvertent groundwork for TBS' lawyers. A leaked memo from 2008 shows that he actively encouraged producers to skirt licensing foreign programs if possible when creating "new" shows for ABC:

"Not helping matters was a leaked 2008 memo from ABC executive vp Howard Davine, urging execs and showrunners to "carefully scrutinize" whether licensing foreign formats was "necessary or appropriate" before going forward with similar shows, especially when they might only be interested in the "general, underlying premise."

This, in turn, fired up another rights protection group, the Format Recognition and Protection Association, who responded by encouraging producers to help themselves to the "underlying premises" behind ABC/Disney IP, namely Hannah Montana and Mickey Mouse.

The ruling may change the game considerably for producers of reality programs who have shown a preference for "me too" programming with little legal backlash. (Our new favorite metaphoric term for "uncluttered by legislation/legal battles" makes a reappearance): 

Owing to what might be a knee-jerk reaction against protecting the creativity in a genre dubbed "reality," as well as a lack of clarity in copyright law, many producers believe there is a Wild West mentality in the unscripted world that has given rise to a culture of rampant, unlicensed borrowing. 

But does everything need to be licensed? Or are we fine with certain aspects of television being accepted tropes, rather than actionable IP? After all, it's not as if any one producer can claim ownership of Detectives Solving Crimes or Three Cameras and a Laugh Track or even Ghost Hunter Hunts Ghosts. If they're really going to sort this out into compartmentable pieces of litigation, every detective show ever is going to be paying royalties to the estate of Edgar Allan Poe. Even more to the point, defenders of copyright continually tell us that "ideas" aren't covered by copyright -- and yet, clearly, that seems to be what everyone's up in arms about here.

Of course, this doesn't stop The Hollywood Reporter from stating, yes, do exactly that when it comes to making sure that these kinds of "ideas" are covered by the law. 

In a genre where the traditional plot and character aspects of scripted works have been replaced by unique formats, the law might need to evolve to protect the creativity that informs this powerful segment of the TV world.

Maybe. But my gut feeling is the only thing "evolving" will be various IP law firms, rather than television itself.

(Hat tip to Mr. LemurBoy for sending this in.)

On Monday, hours after WikiLeaks, The New York Times and other news organizations began publishing the documents online, the Justice Department informed Guantanamo defense lawyers that the documents remained legally classified even after they were made public.

Because the lawyers have security clearances, they are obligated to treat the readily available files "in accordance with all relevant security precautions and safeguards" -- handling them, for example, only in secure government facilities, said the notice from the department's Court Security Office.